WashU Expert: Zubik v. Burwell could be knockout punch to contraceptive mandate

The death of U.S. Supreme Court Justice Antonin Scalia calls into question a number of upcoming Supreme Court cases, including a major decision on contraceptive coverage.


Zubik v. Burwell, a new challenge to the contraceptive mandate in the Affordable Care Act, could now result in a split decision, potentially allowing disparate lower court rulings to stand.

At stake is whether employees of religiously affiliated organizations such as universities, hospitals and charities can be stripped of their rights to contraceptive coverage.

“In round one against the contraceptive mandate, the Hobby Lobby decision carved out a major accommodation for for-profit corporations,” said Elizabeth Sepper, associate professor of law and an expert on health law.

“In round two, Zubik wants to deliver a knockout punch to the mandate.

“In a nutshell, the nonprofits say that having to request a religious accommodation itself substantially burdens their free exercise,” said Sepper, who co-authored an amicus brief on behalf of a group of church-state scholars on the Establishment Clause implications of the case.

“The nonprofits argue that sending in a letter to the government to avail themselves of the accommodation is too great a regulatory burden,” she said. “The unprecedented and off-the-wall nature of this argument led seven out of eight appellate courts to soundly reject the nonprofits’ claims.”

If the Supreme Court concludes that a religious accommodation is itself a substantial burden on religion, “every regulation, or exemption therefrom, would also substantially burden religion,” Sepper said. “All federal law could have to survive the highest level of constitutional review in order to apply to religious objectors — whether they are individuals of disfavored faiths or craft stores aligned with powerful majority religions.”

Granting the exemption would impose the cost of accommodating an employer’s religious exercise on employees who do not share its beliefs, Sepper said.

Imposing such burdens, Sepper said, violates the Establishment Clause of the First Amendment, which prohibits the government from shifting the costs of accommodating a religion from those who practice it to those who do not.

“The denial of contraceptive coverage would mean higher spending, greater health risks, and the perpetuation of disadvantage in both employment and education for the women who work for or study with petitioners,” Sepper and her colleagues wrote in the amicus brief. “This would impede the ability of each beneficiary to make decisions about contraception based on her own religious and moral beliefs.”

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